-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LliLwCJM0ffaUH4IbisM/L8Z8VSOMpb8jb5ygwXchzc30jC+hdQ3dKvqbLCJ5D3l qNr0eXmFdI9+ylaFLE+srw== 0000726513-95-000029.txt : 19951231 0000726513-95-000029.hdr.sgml : 19951231 ACCESSION NUMBER: 0000726513-95-000029 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19951229 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SOFTKEY INTERNATIONAL INC CENTRAL INDEX KEY: 0000719612 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 942562108 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-35677 FILM NUMBER: 95605495 BUSINESS ADDRESS: STREET 1: ONE ATHENAEUM ST CITY: CAMBRIDGE STATE: MA ZIP: 02142 BUSINESS PHONE: 6174941200 MAIL ADDRESS: STREET 1: ONE ATHENAEUM ST CITY: CAMBRIDGE STATE: MA ZIP: 02142 FORMER COMPANY: FORMER CONFORMED NAME: WORDSTAR INTERNATIONAL INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: MICROPRO INTERNATIONAL CORP DATE OF NAME CHANGE: 19890618 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TRIBUNE CO CENTRAL INDEX KEY: 0000726513 STANDARD INDUSTRIAL CLASSIFICATION: NEWSPAPERS: PUBLISHING OR PUBLISHING & PRINTING [2711] IRS NUMBER: 361880355 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 435 N MICHIGAN AVE CITY: CHICAGO STATE: IL ZIP: 60611 BUSINESS PHONE: 3122229100 SC 13D 1 INITIAL STATEMENT-GENERAL STMT OF BEN. OWNERSHIP SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 SOFTKEY INTERNATIONAL INC. - -------------------------------------------------------------------------------- (Name of issuer) COMMON STOCK, PAR VALUE OF $.01 PER SHARE - -------------------------------------------------------------------------------- (Title of class of securities) 98136310 - -------------------------------------------------------------------------------- (CUSIP number) Stanley J. Gradowski Vice President and Secretary Tribune Company 435 North Michigan Avenue Chicago, Illinois 60611 (312) 222-9100 - -------------------------------------------------------------------------------- (Name, address and telephone number of person authorized to receive notices and communications) December 22, 1995 ----------------------------------------------------------------------- (Date of event which requires filing of this statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|. Check the following box if a fee is being paid with the statement |X|. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7): Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. (Continued on following pages) CUSIP No. 98136310 13D Page 2 of 10 Pages 1 NAME OF REPORTING PERSON S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Tribune Company IRS No. 36-1880355 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_| (b) |_| 3 SEC USE ONLY 4 SOURCE OF FUNDS WC, OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |_| 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER* NUMBER OF 2,830,188 SHARES 8 SHARED VOTING POWER BENEFICIALLY 0 OWNED BY 9 SOLE DISPOSITIVE POWER* EACH 2,830,188 REPORTING 10 SHARED DISPOSITIVE POWER PERSON WITH 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON* 2,830,188 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.1% 14 TYPE OF REPORTING PERSON CO * The beneficial ownership numbers disclosed herein assume the conversion into common stock of SoftKey International Inc. (the "Company") of all of the Company's 5 1/2% Senior Convertible/Exchangeable Notes due 2000 (the "Notes") held by Tribune Company. Conversion of the Notes, however, is subject to the applicable waiting period imposed by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. CUSIP No. 98136310 13D Page 3 of 10 Pages Item 1. Security and Issuer. The title and class of equity securities to which this statement relates is the common stock, par value $.01 per share (the "Common Stock"), of SoftKey International Inc., a Delaware corporation (the "Company"). The Company's principal executive offices are located at One Athenaeum Street, Cambridge, Massachusetts 02142. Although Tribune Company, a Delaware corporation ("Tribune"), has not acquired any shares of Common Stock, Tribune may be deemed to be the beneficial owner of the shares of Common Stock reported in Item 5 by virtue of its acquisition of beneficial ownership of an aggregate principal amount of $150,000,000 of the Company's 5-1/2% Senior Convertible/Exchangeable Notes due 2000 (the "Notes"). Item 2. Identity and Background. (a)-(e) This statement is being filed by Tribune, an information and entertainment company. Through its subsidiaries, Tribune is engaged in the publishing of newspapers, books and information in print and digital formats and the broadcasting, production and syndication of information and entertainment in metropolitan areas in the United States. The principal business and office address of Tribune is 435 North Michigan Avenue, Chicago, Illinois 60611. The following individuals are the executive officers and directors of Tribune (with asterisks indicating the directors): Present Principal Occupation Name and Name or Employment1 Business Address2 Charles T. Brumback* Chairman and Former Tribune Company Chief Executive Officer 435 N. Michigan Ave. Chicago, IL 60611 John W. Madigan* President and Chief Tribune Company Executive Officer 435 N. Michigan Ave. Chicago, IL 60611 James C. Dowdle* Executive Vice Tribune Company President/Media 435 N. Michigan Ave. Operations Chicago, IL 60611 Stanton R. Cook* Former Chairman Tribune Company and Chief Executive 435 N. Michigan Ave. Officer Chicago IL 60611 Diego E. Hernandez* President, Marine 8350 N.W. 52nd Terrace Technology Group, Inc. Suite 400 (technical consulting Miami, FL 33166 services) - -------- 1 Unless otherwise indicated, each occupation set forth opposite an individuals's name refers to such individuals's positions with Tribune. Description of the principal business of Tribune and its subsidiaries has been omitted from the table. 2 Unless otherwise noted, all addresses are business addresses. CUSIP No. 98136310 13D Page 4 of 10 Pages Present Principal Occupation Name and Name or Employment Business Address Robert E. La Blanc* President, Robert E. R.E. La Blanc Associates, Inc. La Blanc Associates, 323 Highland Avenue Inc. (consultants in Ridgewood, NJ 07450 information technology) Andrew J. McKenna* Chairman, President Schwarz Paper Company and Chief Executive 8838 N. Austin Officer, Schwarz Paper Morton Grove, IL 60053 Company (paper converter) Nancy Hicks Maynard* President, Maynard Maynard Partners, Inc. Partners, Inc. (consultants 15960 Broadway Terrace in news media economics) Oakland, CA 94618 Kristie Miller* Author, Journalist, 5907 Frazier Lane the Daily News McLean, VA 22101 Inc. of LaSalle, Illinois (newspaper) Newton N. Minow* Counsel, Sidley & Sidley & Austin Austin (law firm) One First National Plaza Chicago, IL 60603 James J. O'Connor* Chairman, Chief Unicom Corporation Executive Officer, P.O. Box A3005 Unicom Corporation Chicago, IL 60690 (holding company) and Commonwealth Edison Company (electric utility) Donald H. Rumsfeld* Corporation Director 400 N. Michigan Ave. Suite 405 Chicago, IL 60611 Arnold R. Weber* Chancellor, Civic Committee Northwestern University One First National Plaza and President, Civic 215 S. Clark Street Committee of Commercial Suite 3115 Club of Chicago Chicago, IL 60603 Donald C. Grenesko Senior Vice President Tribune Company and Chief Financial 435 N. Michigan Ave. Officer Chicago, IL 60611 David D. Hiller Senior Vice President/ Tribune Company Development 435 N. Michigan Ave. Chicago, IL 60611 CUSIP No. 98136310 13D Page 5 of 10 Pages Present Principal Occupation Name and Name or Employment Business Address John S. Kazik Senior Vice President/ Tribune Company Information Systems 435 N. Michigan Ave. Chicago, IL 60611 John T. Sloan Senior Vice President/ Tribune Company Administration 435 N. Michigan Ave. Chicago, IL 60611 Ruthellyn Musil Vice President/ Tribune Company Corporate Relations 435 N. Michigan Ave. Chicago, IL 60611 Robert D. Bosau Executive Vice President, Tribune New Media Tribune New Media Company Two Prudential Plaza Suite 1200 Company Chicago, IL 60601 Joseph D. Cantrell Executive Vice President, Tribune Publishing Tribune Publishing Company Company 435 N. Michigan Ave. Chicago, IL 60611 Dennis FitzSimons Executive Vice President, Tribune Broadcasting Tribune Broadcasting Company Company 435 N. Michigan Ave. Chicago, IL 60611 Neither Tribune nor, to the knowledge of Tribune, any of the executive officers and directors identified above, during the last five years, (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding any violation with respect to such laws. (f) Tribune is a Delaware corporation. Each of the executive officers and directors identified under Item 2(a)-(e) is a citizen of the United States of America. Item 3. Source and Amount of Funds or Other Consideration. Pursuant to the Securities Purchase Agreement dated as of November 30, 1995, including exhibits attached thereto (the "Securities Purchase Agreement," a copy of which was filed as Exhibit 99.3 to Tribune's Current Report on Form 8-K dated December 14, 1995 and is incorporated herein by reference), between the Company and Tribune, on December 22, 1995, the Company issued to Tribune, and Tribune acquired from the Company, the Notes for an aggregate purchase price of $150,000,000 (the "Purchase Price"). The funds used by Tribune to pay the Purchase Price were obtained by Tribune from its general working capital resources and through commercial paper borrowings of approximately $150,000,000. The commercial paper was placed through the Placement Agency Agreement dated as of November 6, 1987 between Tribune and Merrill Lynch Money Markets Inc., a Delaware corporation, and the Letter Agreement dated as of March 8, 1990 between Tribune and Goldman Sachs Money Markets Inc., which agreements are included as Exhibits 5 and 6, respectively, and incorporated herein by reference. CUSIP No. 98136310 13D Page 6 of 10 Pages Item 4. Purpose of Transaction. On December 22, 1995, Tribune acquired the Notes pursuant to the Securities Purchase Agreement for investment purposes. Under the Indenture dated as of December 22, 1995 between the Company and State Street Bank and Trust Company (the "Indenture") relating to the Notes (a form of which Indenture is included as an exhibit to the Securities Purchase Agreement), Tribune may, at any time at its option, convert all or a portion of the Notes into Common Stock or exchange all or a portion of the Notes for shares of the Company's 5-1/2% Series C Convertible Preferred Stock (the "Preferred Stock") which itself may be converted into Common Stock; provided, however, that, in each case, any such conversion into Common Stock will be subject to the applicable waiting period of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"). Tribune may sell all or a portion of the Notes, its shares of Preferred Stock or its shares of Common Stock in the open market or in privately negotiated transactions, subject to the terms of the Securities Purchase Agreement, the Registration Rights Agreement (as defined herein), the Company's business or financial condition and to other factors and conditions Tribune deems appropriate. Tribune or any of the other persons identified in Item 2 may from time to time acquire additional shares of Common Stock in the open market or in privately negotiated transactions, subject to the Standstill Agreement (as defined herein), the availability of shares at prices deemed favorable and to the factors and conditions referred to above. Pursuant to the terms of the Standstill Agreement dated as of December 22, 1995 between Tribune and the Company (the "Standstill Agreement," a copy of which is attached hereto as Exhibit 2 and incorporated herein by reference), Tribune has agreed to refrain from acquiring more than 20% (or such greater number that may result from the conversion of the Notes and the consummation of the transactions contemplated by the Plan of Merger (as defined in Item 6)) of the Company's outstanding Voting Securities (as defined in the Standstill Agreement), subject to qualifications contained therein, including contingencies involving the change of control of the Company. In addition, the Company agreed, immediately following the closing of the transactions contemplated by the Securities Purchase Agreement, to take all necessary actions to increase the size of the Company's Board of Directors ("Board") by one member and to fill the vacancy created thereby with an individual designated by Tribune. If at any time, following the closing of the Mergers (as defined in Item 6), the Company's Board consists of at least 10 members, the Company has agreed to increase further the size of the Board by one member and to fill the vacancy created thereby with a second individual designated by Tribune. Pursuant to the terms of the Securities Resale Registration Rights Agreement dated as of December 22, 1995 between the Company and Tribune (the "Registration Rights Agreement," a copy of which is attached hereto as Exhibit 3 and incorporated herein by reference), the Company has agreed to use its best efforts to file a registration statement on or prior to the 90th day after December 22, 1995 which shall provide for resales of the Notes, shares of the Preferred Stock and shares of the Common Stock (subject to certain qualifications contained in the Registration Rights Agreement). Other than as set forth in this Item, Item 5, Item 6 or the Standstill Agreement, no person identified in Item 2 has any present plans or proposals which relate to or would result in (a) the acquisition by any person of additional securities of the Company, or the disposition of securities of the Company; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Company or of any of its subsidiaries; (d) any change in the present Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the Board; (e) any material change in the present capitalization or dividend policy of the Company; (f) any other material change in the Company's business or corporate structure; (g) changes in the Company's charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any person; (h) causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended; or (j) any action similar to any of those enumerated in (a)-(i) above. CUSIP No. 98136310 13D Page 7 of 10 Pages Item 5. Interest in Securities of the Issuer. (a) On December 22, 1995, Tribune purchased the Notes from the Company pursuant to the Securities Purchase Agreement. Any $1,000 in principal amount of the Notes may be converted into such number of fully paid, duly authorized and non-assessable shares of Common Stock as is equal to (i) $1,000 divided by (ii) the "Conversion Price," which initially is $53.00 (subject to certain antidilution adjustments). Cash will be paid in lieu of fractional shares. In the alternative, any $1,000 in principal amount of the Notes may be exchanged into such number of fully paid, duly authorized and nonassessable shares of Preferred Stock as is equal to (i) $1,000 divided by (ii) the "Exchange Price," which initially is $1,000 (subject to certain antidilution adjustments). Each share of Preferred Stock may be converted into such number of fully paid, duly authorized and non-assessable shares of Common Stock as is equal to (i) 1,000 divided by (ii) the "Preferred Stock Conversion Price," which initially is $53.00 (subject to certain antidilution adjustments). Cash will be paid in lieu of fractional shares. In each case, conversion into the Common Stock will be subject to the applicable waiting period under the HSR Act. Assuming conversion of the full principal amount of the Notes beneficially owned by Tribune at the initial Conversion Price of $53.00, or the exchange of the full principal amount of the Notes beneficially owned by Tribune at the initial Exchange Price of $1,000 followed by the conversion of all shares of Preferred Stock then beneficially owned by Tribune at the initial Preferred Stock Conversion Price of $53.00, Tribune has the sole voting power and sole dispositive power over 2,830,188 shares of Common Stock. At the initial Conversion Price and the initial Preferred Stock Conversion Price, the Notes represent approximately 10.1% of the outstanding shares of Company Common Stock (such percentage being calculated based on the representation of the Company to Tribune that on November 30, 1995 there were 25,152,779 shares of Common Stock issued and outstanding). Except as set forth in this Item 5(a), neither Tribune, nor, to the knowledge of Tribune, any executive officer or director of Tribune identified in Item 2 above, beneficially owns any shares of Common Stock. (b) The information contained in Item 5(a) is incorporated herein by reference. (c) The information contained in Item 5(a) is incorporated herein by reference. Except as set forth in this Item 5(c), neither Tribune nor, to the knowledge of Tribune, any of the executive officers or directors of Tribune identified in Item 2 above has effected transactions in the Common Stock in the last 60 days. (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangement, Understanding or Relationships with Respect to Securities of the Issuer. The information set forth under Items 3, 4 and 5 of this statement is incorporated herein by reference. On November 30, 1995, Tribune entered into an Agreement and Plan of Merger ("Plan of Merger") by and among the Company, Cubsco I Inc., a California corporation and a wholly owned subsidiary of the Company, Cubsco II Inc., a Delaware corporation and a wholly owned subsidiary of the Company, Compton's NewMedia, Inc., a California corporation and a wholly owned subsidiary of Tribune, and Compton's Learning Company, a Delaware corporation and a wholly owned subsidiary of Tribune. The Plan of Merger provides for the merger of Cubsco I Inc. with and into Compton's NewMedia, Inc. with Compton's NewMedia, Inc. being the surviving corporation and the merger of Cubsco II Inc. with and into Compton's Learning Company with Compton's Learning Company being the surviving corporation (the "Mergers"). Following the Mergers, the surviving corporations would be wholly owned subsidiaries of the Company. Upon the closing of the Mergers (assuming they close on the same day), Tribune will have the right to receive an aggregate number of shares, CUSIP No. 98136310 13D Page 8 of 10 Pages rounded up to the nearest whole share, of Common Stock, equal to the number obtained by dividing $106,500,000 by the volume-weighted average of the closing prices for Common Stock as quoted over the Nasdaq National Market for the 10 full trading days ending on the second full trading day prior to the closing of the Mergers (the "Merger Exchange Price"). Furthermore, in payment for certain intercompany debt, Tribune may receive an additional aggregate number of shares of Common Stock equal to the number obtained by dividing an amount up to $17,000,000 by the Merger Exchange Price. A copy of the Plan of Merger was filed as Exhibit 99.2 to Tribune's Current Report on Form 8-K dated December 14, 1995 and is incorporated herein by reference. Item 7. Material to be Filed as Exhibits. Exhibit Number Description EX-99.1 Securities Purchase Agreement dated as of November 30, 1995 between Tribune Company and SoftKey International Inc. (including exhibits attached thereto)(incorporated by reference to Exhibit 99.3 to Tribune Company's Current Report on Form 8-K dated December 14, 1995) EX-99.2 Securities Resale Registration Rights Agreement dated as of December 22, 1995 between Tribune Company and SoftKey International Inc. EX-99.3 Standstill Agreement dated as of December 22, 1995 between Tribune Company and SoftKey International Inc. EX-99.4 Agreement and Plan of Merger dated as of November 30, 1995 by and among SoftKey International Inc., Cubsco I Inc., Cubsco II Inc., Tribune Company, Compton's NewMedia, Inc. and Compton's Learning Company (incorporated by reference to Exhibit 99.2 to Tribune Company's Current Report on Form 8-K dated December 14, 1995) EX-99.5 Placement Agency Agreement dated as of November 6, 1987 between Tribune Company and Merrill Lynch Money Markets Inc. EX-99.6 Letter Agreement dated as of March 8, 1990 between Tribune Company and Goldman Sachs Money Markets Inc. CUSIP No. 98136310 13D Page 9 of 10 Pages SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. December 28, 1995 TRIBUNE COMPANY By: /s/ R. Mark Mallory ------------------- R. Mark Mallory Vice President and Controller CUSIP No. 98136310 13D Page 10 of 10 Pages Exhibit Index Exhibit Number Description EX-99.1 Securities Purchase Agreement dated as of November 30, 1995 between Tribune Company and SoftKey International Inc. (including exhibits attached thereto)(incorporated by reference to Exhibit 99.3 to Tribune Company's Current Report on Form 8-K dated December 14, 1995) EX-99.2 Securities Resale Registration Rights Agreement dated as of December 22, 1995 between Tribune Company and SoftKey International Inc. EX-99.3 Standstill Agreement dated as of December 22, 1995 between Tribune Company and SoftKey International Inc. EX-99.4 Agreement and Plan of Merger dated as of November 30, 1995 by and among SoftKey International Inc., Cubsco I Inc., Cubsco II Inc., Tribune Company, Compton's NewMedia, Inc. and Compton's Learning Company (incorporated by reference to Exhibit 99.2 to Tribune Company's Current Report on Form 8-K dated December 14, 1995) EX-99.5 Placement Agency Agreement dated as of November 6, 1987 between Tribune Company and Merrill Lynch Money Markets Inc. EX-99.6 Letter Agreement dated as of March 8, 1990 between Tribune Company and Goldman Sachs Money Markets Inc. EX-99.2 2 SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT Exhibit 99.2 SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT Dated as of December 22, 1995 by and among TRIBUNE COMPANY and SOFTKEY INTERNATIONAL INC. SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT This SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered into as of December 22, 1995 by and among SOFTKEY INTERNATIONAL INC., a Delaware corporation (the "Company"), and TRIBUNE COMPANY, a Delaware corporation (the "Purchaser"), which Purchaser (i) has agreed to purchase from the Company $150,000,000 principal amount of 5 1/2% Senior Convertible/ Exchangeable Notes due 2000 (the "Notes") pursuant to the Purchase Agreement (as defined below) and (ii) will acquire shares of Common Stock (as defined below) pursuant to the Merger Agreement (as defined below). This Agreement is made pursuant to (i) the Securities Purchase Agreement dated as of November 30, 1995 (the "Purchase Agreement") by and among the Company and the Purchaser and (ii) the Agreement and Plan of Merger dated as of November 30, 1995 providing for two separate reverse subsidiary mergers of wholly owned subsidiaries of the Company with and into wholly owned subsidiaries of the Purchaser (the "Merger Agreement"). In order to induce the Purchaser to purchase the Notes, the Company has agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is provided for in the Purchase Agreement. The parties hereby agree as follows: SECTION 1. DEFINITIONS As used in this Agreement, the following capitalized terms shall have the following meanings: Act: Securities Act of 1933, as amended. Agreement: As defined in the preamble hereto. Broker-Dealer: Any broker or dealer registered under the Exchange Act (as hereinafter defined). Certificate of Designation: The Certificate of Designation for the Preferred Shares. Closing Date: The earliest to occur of (a) the closing of the transactions contemplated by the Merger Agreement and (b) the purchase and sale of the Notes to the Purchaser. Commission: Securities and Exchange Commission. Common Stock: Common Stock of the Company, par value $.01 per share. Company: As defined in the preamble hereto. -1- Effectiveness Target Date: As defined in Section 3 ------------------------- hereof. Exchange Act: Securities Exchange Act of 1934, as amended. Exempt Resales: Any transaction exempt from the registration requirements of the Act in which the Purchaser sells the Notes, including without limitation sales (i) to "qualified institutional buyers," as such term is defined in Rule 144A under the Act ("QIBs"), (ii) to institutional "accredited investors," as such term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Act ("Accredited Institutions") and (iii) outside the United States, to certain persons in offshore transactions in reliance on Regulation S under the Act. Holder: As defined in Section 2(b) hereof. Indemnified Holder: As defined in Section 6(a) hereof. Indenture: The Indenture by and among the Company and State Street Bank and Trust Company, as trustee (the "Trustee"), pursuant to which the Notes are to be issued, as such Indenture as amended, modified or supplemented from time to time in accordance with the terms thereof. Interest Payment Date: As defined in the Indenture and the Notes. NASD: National Association of Securities Dealers, Inc. Person: An individual, partnership, corporation, trust, unincorporated organization or a government, agency or political subdivision thereof. Preferred Shares: The Company's 5 1/2% Series C Convertible Preferred Stock into which the Notes are exchangeable at the option of the Holders thereof. Prospectus: The prospectus included in the Registration Statement, as amended or supplemented including without limitation by any post-effective amendments thereto, and all material incorporated by reference into such prospectus. Purchase Agreement: As defined in the preamble hereto. Purchaser: As defined in the preamble hereto. Registrable Securities: As defined in Section 3(a)(i) hereto. Registration Statement: The continuous registration statement of the Company which is filed pursuant to Rule 415 under the Act, including the Prospectus included therein, all -2- amendments and supplements thereto (including any post-effective amendments) and all exhibits and material incorporated by reference therein. Shelf Filing Deadline: As defined in Section 3 hereof. TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb), as amended and in effect on the date of the Indenture. Transfer Restricted Securities: Each Note, each Preferred Share and each share of Common Stock (i) issuable upon conversion of the Notes or Preferred Shares and (ii) issuable to Purchaser under the Merger Agreement held by the Purchaser or, except in the case of shares of Common Stock issuable to Purchaser under the Merger Agreement, its transferee until the date on which such Note, Preferred Share or share of Common Stock, as the case may be, has been registered under the Act and disposed of in accordance with an effective Registration Statement. Underwritten Registration or Underwritten Offering: A registration in which securities of the Company are sold to an underwriter for reoffering to the public. SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT (a) Transfer Restricted Securities: The securities entitled to the benefits of this Agreement are the Transfer Restricted Securities and, more particularly, the Registrable Securities. (b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer Restricted Securities (each, a "Holder") whenever such Person owns Transfer Restricted Securities of record. SECTION 3. REGISTRATION (a) Shelf Registration. The Company hereby agrees to: (i) use its best efforts to file or cause to be filed the Registration Statement on or prior to the 90th day after the Closing Date (the "Shelf Filing Deadline"), which Registration Statement shall provide for resales of all Transfer Restricted Securities except (A) Transfer Restricted Securities held by transferees of any Holder who or which becomes a Holder after the Registration Statement is declared effective and (B) Transfer Restricted Securities held by the transferee of any Holder who or which holds less than $5,000,000 in principal amount of the Notes or the equivalent (on an "as exchanged" or "as converted" basis) in -3- Preferred Shares or shares of Common Stock (such Transfer Restricted Securities being hereinafter referred to as the "Registrable Securities"), provided that the Holders thereof shall have provided the information required pursuant to Section 3(b) hereof; and (ii) use all reasonable efforts to cause the Registration Statement to be declared effective by the Commission as promptly as practicable after the Closing Date (the "Effectiveness Target Date"). Subject to any notice by the Company in accordance with Section 4(b) hereof of the existence of any fact or event of the kind described in Section 4(b)(iii)(D) hereof, the Company shall use all reasonable efforts to keep the Registration Statement continuously effective, supplemented and amended as required by the provisions of Sections 4(a) and (b) hereof to the extent necessary to ensure that it is available for resales of Transfer Restricted Securities by the Holders of Transfer Restricted Securities entitled to the benefit of this Section 3(a) and to ensure that the Registration Statement conforms to the requirements of this Agreement, the Act and the policies, rules and regulations of the Commission as announced from time to time thereunder for a period of at least three years following the Closing Date. (b) Certificated Securities; Provision by Holders of Certain Information in Connection with the Registration Statement. No Holder of Registrable Securities may include any of its Transfer Restricted Securities in the Registration Statement pursuant to this Agreement unless (i) such Holder holds such Transfer Restricted Securities in the form of physical certificates and (ii) until such Holder furnishes to the Company in writing, within 20 business days after receipt of a request therefor, such information as the Company may reasonably request for use in connection with the Registration Statement or any Prospectus or preliminary Prospectus included therein. In connection with all such requests for information from Holders of Registrable Securities, the Company shall notify such Holders of the requirements set forth in the preceding sentence. Each Holder as to which the Registration Statement is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading. SECTION 4. REGISTRATION PROCEDURES (a) In connection with the Registration Statement, the Company shall comply with all the provisions of Section 4(b) below and shall use all reasonable efforts to effect such registration to permit the resale of the Registrable Securities -4- being sold in accordance with the intended method or methods of distribution thereof. (b) In connection with the Registration Statement and any Prospectus required by this Agreement, the Company shall: (i) subject to Section 4(b)(xv) hereof, use all reasonable efforts to keep the Registration Statement continuously effective and provide all requisite financial statements for the period specified in Section 3 of this Agreement; upon the occurrence of any event that would cause the Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resales of Registrable Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to the Registration Statement correcting any such misstatement or omission, and, in the case of either clause (A) or (B), except as set forth in Section 4(b)(xv) below, use all reasonable efforts to cause such amendment to be declared effective and the Registration Statement and the related Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter; (ii) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period set forth in Section 3 hereof, or such shorter period as will terminate when all Registrable Securities covered by the Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented, cause the Prospectus to be filed pursuant to Rule 424 under the Act and to comply fully with the applicable provisions of Rules 424 and 430A under the Act in a timely manner; and comply with the provisions of the Act with respect to the disposition of all securities covered by the Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in the Registration Statement or supplement to the Prospectus; (iii) advise the underwriter(s), if any, and selling Holders promptly and, if requested by such Persons, to confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Act or -5- of the suspension by any state securities commission of the qualification of the Registrable Securities for offering or sale in any jurisdiction or of the initiation of any proceeding for any of the preceding purposes, (D) of the existence of any fact or the happening of any event (including without limitation pending negotiations relating to, or the consummation of, a transaction or the occurrence of any other event which would require additional disclosure of material, nonpublic information by the Company in the Registration Statement as to which the Company has a bona fide business purpose for preserving confidentiality or which renders the Company unable to comply with Commission requirements) that makes untrue any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto or any document incorporated by reference therein, or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Registrable Securities under state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time; (iv) furnish to each of the selling Holders, upon request, and to each of the underwriter(s), if any, before filing with the Commission, copies of the Registration Statement or any Prospectus included therein and any amendments or supplements thereto (including all documents incorporated by reference prior to the effectiveness of the Registration Statement), which documents, other than documents incorporated by reference, will be subject to the review of such Holders and underwriter(s), if any, for a period of at least five business days, and the Company shall not file the Registration Statement or Prospectus or any amendment or supplement to the Registration Statement or Prospectus to which a selling Holder of Registrable Securities covered by the Registration Statement or the underwriter(s), if any, shall reasonably object within five business days after the receipt thereof; a selling Holder or underwriter(s), if any, shall be deemed to have reasonably objected to such filing only if the Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains a material misstatement or omission; (v) if practicable, promptly prior to the filing of any document that is to be incorporated by reference into the Registration Statement or Prospectus subsequent to the effectiveness thereof, and in any event no later than the -6- date such document is filed with the Commission, provide copies of such document to the selling Holders, if requested, and to the underwriter(s), if any, make representatives of the Company available for discussion of such document and other customary due diligence matters, and include such information in such document prior to the filing thereof as such selling Holders or underwriter(s), if any, reasonably may request; (vi) make available at reasonable times for inspection by the selling Holders, any underwriter(s) participating in any disposition pursuant to the Registration Statement and any attorney or accountant retained by such selling Holders or any of the underwriter(s), all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all information reasonably requested by any such Holder, underwriters, attorney or accountant in connection with the Registration Statement subsequent to the filing thereof and prior to its effectiveness; (vii) if requested by any selling Holders or the underwriters, if any, promptly incorporate in the Registration Statement or any Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such selling Holders and underwriters, if any, may reasonably request to have included therein, including, without limitation, information relating to the "Plan of Distribution" of the Registrable Securities, information with respect to the principal amount or number of shares of Registrable Securities being sold to such underwriter(s), the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering and make all required filings of any such Prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment; (viii) cause the Notes or Preferred Shares covered by the Registration Statement to be rated with the appropriate rating agencies, if so requested by the Holders of a majority in aggregate principal amount of Notes, in the case of the Notes, or a majority of the Preferred Shares, in the case of the Preferred Shares, or the underwriter(s) for any Underwritten Offering of such Notes or Preferred Shares, if any; (ix) [Intentionally omitted] (x) deliver to each selling Holder and each of the underwriter(s), if any, without charge, as many copies of each Prospectus (including each preliminary prospectus intended for public distribution) and any amendment or -7- supplement thereto as such Persons reasonably may request; the Company hereby consents to the use of each Prospectus and any amendment or supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in connection with the offering and the sale of the Transfer Restricted Securities covered by any Prospectus or any amendment or supplement thereto; (xi) enter into such customary agreements (including an underwriting agreement), and make such customary representations and warranties, and, subject to Section 4(b)(xv) hereof, take all such other customary actions in connection therewith in order to expedite or facilitate the disposition of the Registrable Securities pursuant to the Registration Statement contemplated by this Agreement, all to such extent as may be requested by the Purchaser or by any Holder of Registrable Securities or underwriter in connection with any sale or resale pursuant to the Registration Statement contemplated by this Agreement; and whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Registration, the Company shall: (A) furnish to the Purchaser, each selling Holder and each underwriter, if any (including any Broker- Dealer who may be deemed to be an underwriter), officers' certificates, legal opinions and comfort letters, in such substance and scope as they may request and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the date of the effectiveness of the Registration Statement; (B) set forth in full or incorporate by reference in the underwriting agreement, if any, indemnification provisions and procedures substantially in the form of those set forth in Section 6 hereof with respect to all parties required to be indemnified pursuant to said Section 6; and (C) deliver such other documents and certificates as may be reasonably requested by such parties to evidence compliance with clause (A) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company pursuant to this clause (xi), if any. (xii) prior to any public offering of Registrable Securities, cooperate with the selling Holders, the underwriter(s), if any, and their respective counsel in connection with the registration and qualification of the Registrable Securities under the securities or Blue Sky laws of such jurisdictions as the selling Holders or underwriter(s) may request; and do any and all other acts or -8- things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, however, that the Company shall not be required to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to service of process in suits or to taxation, other than as to matters and transactions relating to the Registration Statement, in any jurisdiction where it is not now so subject; (xiii) cooperate with the selling Holders and the underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the Holders or the underwriter(s), if any, may request at least two business days prior to any sale of Registrable Securities made by such underwriter(s); (xiv) use all reasonable efforts to cause the Transfer Restricted Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter(s), if any, to consummate the disposition of such Registrable Securities, subject to the proviso contained in clause (xii) above; (xv) as soon as reasonably practicable after the occurrence of any fact or event of the kind described in clause (b)(iii)(D) above, prepare a supplement or post-effective amendment to the Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary, in light of the circumstances in which it was made, to make the statements therein not misleading, provided, however, that notwithstanding anything to the contrary herein, the Company shall not be required to prepare and file such a supplement or post-effective amendment or document if the fact no longer exists; and provided further however, that, in the event of a material business transaction (including without limitation pending negotiations relating to such transaction) which based upon the advice of outside counsel reasonably acceptable to the Purchaser, would require disclosure by the Company in the Registration Statement of material, nonpublic information which the Company has a bona fide business purpose for not disclosing, then for so long as such circumstances and such business purpose continue to exist (provided that such period may not exceed 120 days in any calendar year), the -9- Company shall not be required to prepare and file a supplement or post-effective amendment hereunder; (xvi) provide a CUSIP number for all Transfer Restricted Securities not later than the effective date of the Registration Statement and provide the Trustee under the Indenture with printed certificates for the Transfer Restricted Securities which are in a form eligible for deposit with The Depositary Trust Company; (xvii) cooperate in any filings required to be made with the NASD and in the performance of any due diligence investigation by any underwriter (including any "qualified independent underwriter") that is required to be retained in accordance with the rules and regulations of the NASD, and use all reasonable efforts to cause the Registration Statement to become effective and be approved by such governmental agencies or authorities as may be necessary to enable the Holders selling Registrable Securities to consummate the disposition of such Transfer Restricted Securities; (xviii) otherwise use its reasonable efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security holders, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 (which need not be audited) for the twelve-month period (A) commencing at the end of any fiscal quarter in which Transfer Restricted Securities are sold to underwriters in a firm commitment or best efforts Underwritten Offering or (B) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter, as applicable, commencing after the effective date of the Registration Statement; (xix) cause the Indenture to be qualified under the TIA not later than the effective date of the Registration Statement, and, in connection therewith: cooperate with the Trustee and the Holders of Notes to effect such changes to the Indenture as may be required for such Indenture to be so qualified in accordance with the terms of the TIA; and execute and use all reasonable efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner; (xx) cause all Registrable Securities covered by the Registration Statement to be listed on any securities exchange on which similar securities issued by the Company are then listed if requested by the Holders of a majority in aggregate principal amount of Notes, the Holders of a -10- majority of shares of the Preferred Shares, or the managing underwriter(s), if any; and (xxi) provide promptly to each Holder upon request any document filed with the Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act. Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any notice from the Company of the existence of any fact or event of the kind described in Section 4(b)(iii)(D) hereof, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to the applicable Registration Statement until such Holder's receipt of the copies of a supplemented or amended Prospectus as contemplated by Section 4(b)(xv) hereof, or until it is advised in writing (the "Advice) by the Company that the use of the Prospectus may be resumed, and, has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the expense of the Company) all copies, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Registrable Securities that was current at the time of receipt of such notice. In the event the Company shall give any such notice, the time period regarding the effectiveness of the Registration Statement set forth in Section 3 hereof shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 4(b)(iii)(D) hereof to and including the date when each selling Holder covered by the Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 4(b)(xv) hereof or shall have received the Advice. Each Holder, by acquisition of a Transfer Restricted Security, agrees that, to the extent that (A) such Holder is deemed to be an "affiliate" of the Company for purposes of the Securities Act or Accounting Series 130 and 135 of the Commission and (B) (i) the Company has entered into a business combination transaction intended to be accounted for as a pooling of interests and (ii) such accounting treatment requires affiliates of the Company to not dispose of or otherwise reduce such affiliate's risk with respect to any Common Stock of the Company during the period beginning 30 days prior to the effective date of the transaction and until after such time as results covering at least 30 days of combined operations of the combined entity have been published, such Holder shall deliver to the Company an "affiliate letter" in reasonable and customary form and reasonably satisfactory to the Company. -11- SECTION 5. REGISTRATION EXPENSES (a) All expenses incident to the Company's performance of or compliance with this Agreement will be borne by the Company regardless of whether the Registration Statement becomes effective, including without limitation: (i) all registration and filing fees and expenses (including, if applicable, the fees and expenses of any "qualified independent underwriter" and its counsel that may be required by the rules and regulations of the NASD); (ii) all fees and expenses associated with compliance with federal securities and state Blue Sky or securities laws; (iii) all expenses of printing (including printing of any certificates evidencing the Notes and Preferred Shares and printing of Prospectuses), messenger and delivery services and telephone charges; (iv) all fees and disbursements of counsel for the Company and, as provided for in Section 5(b) below, the Holders of Registrable Securities; (v) all application and filing fees in connection with listing any securities on a national securities exchange or automated quotation system pursuant to the requirements hereof; and (vi) all fees and disbursements of independent certified public accountants of the Company (including the expenses of any special audit and comfort letters required by or incident to such performance). The Company will, in any event, bear its own internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any Person, including special experts, retained by the Company. (b) In connection with the Registration Statement required by this Agreement, the Company agrees to reimburse the Purchaser and the Holders of Transfer Restricted Securities being registered pursuant to the Registration Statement for the reasonable fees and disbursements of not more than one counsel, who shall be Sidley & Austin or such other counsel as may be chosen by the Holders of a majority in principal amount or a majority of the shares of the Registrable Securities for whose benefit the Registration Statement is being prepared. SECTION 6. INDEMNIFICATION (a) The Company agrees to indemnify and hold harmless (i)each Holder and (ii) each person, if any, who controls (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) any Holder (any of the persons referred to in this clause (ii) being hereinafter referred to as a "controlling person") and (iii) the respective officers, directors, partners, employees, representatives and agents of any Holder or any controlling person (any person referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an "Indemnified Holder"), to the fullest extent lawful, from and against any and all -12- losses, claims, damages, liabilities, judgments, costs and expenses ("Losses") (including, without limitation and as incurred, reimbursement of all costs of investigating, preparing, pursuing or defending any claim or action, or any investigation or proceeding by any governmental agency or body, commenced or threatened, including the reasonable fees and expenses of counsel to any Indemnified Holder) directly or indirectly caused by, related to, based upon, arising out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any Prospectus (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except insofar as such Losses are caused by an untrue statement or omission or alleged untrue statement or omission that is made in reliance upon and in conformity with information relating to any of the Holders furnished in writing to the Company by any of the Holders for use therein. The Company shall notify the Holders promptly of the institution, threat or assertion of any claim, proceeding (including any governmental investigation) or litigation in connection with the matters addressed by this Agreement which involves the Company or any Indemnified Holder. (b) In case any action or proceeding (including, without limitation, any governmental or regulatory investigation or proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to which indemnity may be sought against the Company, such Indemnified Holder (or the Indemnified Holder controlled by such controlling person) shall promptly notify the Company in writing (provided that the failure to give such notice shall not relieve the Company of its obligations pursuant to this Agreement). Any Indemnified Holder shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Holder, provided, however, that the fees and expenses of such counsel shall be at the expense of the Company if (i) the Company has failed to assume the defense and employ counsel reasonably satisfactory to the Holders or (ii) the named parties to any such action (including impleaded parties) include such Indemnified Holder and the Company and such Indemnified Holder shall have reasonably concluded that there may be one or more legal defenses available to it that are different from or in addition to those available to the Company; provided further that the Company shall not in such event be responsible hereunder for the fees and expenses of more than one firm of separate counsel, which firm shall be designated by the Holders, in connection with any action in the same jurisdiction, in addition to any local counsel. The Company shall not be liable for any settlement of any such action or proceeding effected with its prior written consent, which consent shall not be unreasonably withheld or delayed, and the Company agrees to indemnify and hold harmless any Indemnified Holder from and against any Loss by reason of any settlement of -13- any action effected with its written consent. The Company shall not, without the prior written consent of each Indemnified Holder, settle or compromise or consent to the entry of a judgment in or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any Indemnified Holder is a party thereto) unless such settlement, compromise, consent or termination includes an unconditional release of each Indemnified Holder from all liability arising out of such action, claim, litigation or proceeding. (c) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers, and any person controlling (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each such person, to the same extent as the foregoing indemnity from the Company to each of the Indemnified Holders, but only with respect to claims and actions based on information relating to such Holder furnished in writing by such Holder for use in the Registration Statement or any Prospectus. In case any action or proceeding shall be brought against any of the Company or its directors or officers or any such controlling person in respect of which indemnity may be sought against a Holder of Transfer Restricted Securities, such Holder shall have the rights and duties given the Company, and each of the Company or its directors or officers of such controlling person shall have the rights and duties given to each Holder by the proceeding paragraph. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the securities registered pursuant to provisions hereof giving rise to such indemnification obligation. (d) If the indemnification provided for in this Section 6 is unavailable to a party entitled to indemnification in respect of any Losses referred to herein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders on the other hand from their sale of Transfer Restricted Securities or (ii) if such allocation is not permitted by applicable law, the relative fault of the Company on the one hand and of the indemnified Holder on the other in connection with the statements or omissions which resulted in the Losses as well as any relevant equitable considerations. The relative fault of the Company on the one hand and of the Indemnified Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to -14- information supplied by the Company or by the Indemnified Holder and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The indemnity and contribution obligations of each indemnifying party set forth herein shall be in addition to any liability or obligation such indemnifying party may otherwise have to any indemnified party. The Company and each Holder of Transfer Restricted Securities agree that it would not be just and equitable if contribution pursuant to this Section 6(d) were determined by pro rata allocation (even if Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the Losses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6, none of the Holders (and their related Indemnified Holders) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the total proceeds received by such Holder with respect to the Notes exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders' obligations to contribute pursuant to this Section 6(d) are several in proportion to the respective principal amount of Notes held by each of the Holders hereunder and not joint. SECTION 7. RULE 144A The Company hereby agrees with each Holder, for so long as any Transfer Restricted Securities remain outstanding, to make available to any Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof and any prospective purchase of such Transfer Restricted Securities from such Holder or beneficial owner, any information required to be supplied to a Holder by Rule 144A(d)(4) under the Act in order to permit offers and sales of such Transfer Restricted Securities pursuant to Rule 144A. SECTION 8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS No Holder may participate in any Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on the basis provided in -15- any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents required under the terms of such underwriting arrangements. SECTION 9. SELECTION OF UNDERWRITERS The Holders of Registrable Securities covered by the Registration Statement who desire to do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten Offering, the investment banker or investment bankers and manager or managers that will administer the offering will be selected by the Holders of a majority in aggregate principal amount or a majority of the shares of the Registrable Securities included in such offering; provided that such investment bankers and managers must be reasonably satisfactory to the Company. SECTION 10. MISCELLANEOUS (a) Remedies. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate. (b) No Inconsistent Agreements. The Company will not, on or after the date of this Agreement, enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder are not inconsistent with the rights granted to the holders of the Company's securities under any agreement in effect on the date hereof. (c) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given, unless the Company has obtained the written consent of Holders of a majority of the outstanding principal amount or a majority of the shares of Transfer Restricted Securities. (d) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, telecopier or courier guaranteeing overnight deliver; -16- (i) if to a Holder, at the address set forth on the records of the Registrar under the Indenture, with a copy to the Registrar under the Indenture; and (ii) if to the Company: SoftKey International Inc. One Athenaeum Street Cambridge, Massachusetts 02142 Attention: General Counsel with a copy to: Skadden, Arps, Slate, Meagher & Flom One Beacon Street, 31st Floor Boston, Massachusetts 02108 Attention: Louis A. Goodman All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the next business day, if timely delivered to a courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee at the address specified in the Indenture. (e) Successors and Assigns. This Agreement shall, to the extent provided for herein, inure to the benefit of and be binding upon the successors and assigns of each of the parties, including without limitation and without the need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided, however, that this Agreement shall not inure to the benefit of or be binding upon a successor or assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted Securities from such Holder. (f) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (g) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF. -17- (i) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and the remaining provisions contained herein shall not be affected or impaired thereby. (j) Entire Agreement. This Agreement, together with the other Transaction Documents (as defined in the Purchase Agreement) and the Merger Agreement, is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein or therein with respect to the registration rights granted by the Company with respect to the Transfer Restricted Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. -18- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. SOFTKEY INTERNATIONAL INC. By: /s/ R. Scott Murray Name: R. Scott Murray Title: Chief Financial Officer TRIBUNE COMPANY By: /s/ Donald C. Grenesko Name: Donald Grenesko Title: Sr. Vice President/ C.F.O. -19- EX-99.3 3 STANDSTILL AGREEMENT Exhibit 99.3 STANDSTILL AGREEMENT STANDSTILL AGREEMENT (this "Agreement") dated as of December 22, 1995 by and between Tribune Company, a Delaware corporation ("Stockholder"), and SoftKey International Inc., a Delaware corporation ("Issuer"). On November 30, 1995, Stockholder and Issuer: (a) executed and delivered a Securities Purchase Agreement (the "Purchase Agreement") providing for the issuance and sale by Issuer, and the purchase by Stockholder, of $150,000,000 principal amount of 5-1/2% Senior Convertible/Exchangeable Notes due 2000 (the "Notes"), which may be (i) exchanged for Issuer's 5-1/2% Series C Convertible Preferred Stock (the "Preferred Stock") which may be converted into shares of common stock, par value $.01 per share, of Issuer (the "Common Stock"), or (ii) converted directly into shares of Common Stock; and (b) together with certain wholly owned subsidiaries, executed and delivered an Agreement and Plan of Merger (the "Merger Agreement") providing for two separate re verse subsidiary mergers of wholly owned subsidiaries of Issuer with and into wholly owned subsidiaries of Stockholder in which Issuer will issue to Stockholder, and Stockholder will receive from Issuer, shares of Common Stock. This Agreement is the Standstill Agreement referenced in the Merger Agreement and sets forth certain terms and conditions upon which the Issuer will issue and deliver to Stock holder, and Stockholder (a) will receive and accept from Issuer, (b) owns and holds, and (c) will own and hold, the shares of Common Stock acquired by Stockholder, or any shares of Common Stock which Stockholder has the right to acquire, pursuant to the Purchase Agreement and the Merger Agreement (the "Shares"). In consideration of the mutual agreements contained in the Purchase Agreement, the Merger Agreement and herein, and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows: 1. Stockholder's Representations and Warranties. Stockholder represents and warrants to Issuer as follows: (a) Stockholder is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; (b) Stockholder (i) has the full power and authority to execute and deliver this Agreement, perform its obligations hereunder and consummate the transactions contemplated hereby and (ii) has taken all necessary action to authorize the execution, delivery and performance by Stockholder of this Agreement; (c) this Agreement has been duly and validly authorized, executed and delivered by Stockholder and constitutes the valid and binding obligation of Stockholder, enforceable in accordance with its terms; (d) Stockholder (or any direct or indirect subsidiary of Stockholder and all persons controlling, controlled by or under common control with Stockholder ("Affiliates"), as the case may be), is, or upon issuance to it by Issuer will be, the sole beneficial holder of all the Shares, and Stockholder and Affiliates have not granted or permitted to exist any liens, claims, options, proxies, voting agreements, charges or encumbrances of whatever nature affecting the Shares; (e) the Notes and Shares owned and held by Stock holder and Affiliates as of the date hereof constitute all of the securities of Issuer owned by Stockholder and Affiliates; (f) Stockholder (or Affiliates, as the case may be) is not acquiring the Notes and Shares owned and held by Stockholder and is not acquiring the Shares which may be acquired after the date hereof with the intent or objective of obtaining control of the business, operations or affairs of Issuer; and (g) except as set forth in the Purchase Agreement and the Merger Agreement, neither Stockholder nor any Affiliate has outstanding any option, warrant or other right to acquire, directly or indirectly, any securities of Issuer or any securities which are convertible into or exchangeable or exercisable for any securities of Issuer, nor is Stockholder or any Affiliate subject to any agreement (whether written or in the nature of an informal understanding or arrangement) which allows or obligates the Stockholder or any such Affiliate to vote or acquire any securities of the Issuer. 2. Issuer's Representations and Warranties. Issuer represents and warrants to Stockholder as follows: (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; (b) Issuer (i) has the full power and authority to execute and deliver this Agreement, perform its obligations hereunder and consummate the transactions contemplated hereby and (ii) has taken all necessary action to authorize the execution, delivery and performance by Issuer of this Agreement; and (c) this Agreement has been duly and validly authorized, executed and delivered by Issuer and constitutes the valid and binding obligation of Issuer, enforceable in accordance with its terms. 3. Covenants of Stockholder. Stockholder covenants with Issuer that, without the consent of Issuer, for a period commencing on the date hereof and continuing through the fifth anniversary of the date hereof Stockholder and Affiliates, singly or as part of a group, directly or indirectly, through one or more intermediaries or otherwise, will not: (a) purchase, acquire or own, or offer, propose or agree to purchase, acquire or own, directly or indirectly, any securities of Issuer which are entitled to vote generally in the election of directors (other than upon occurrence of a contingency) ("Voting Securities"), any option, warrant or other right to acquire, directly or indirectly, any Voting Securities or any securities which are convertible into or exchangeable or exercisable for Voting Securities, if, immediately after such purchase or acquisition, Stockholder and Affiliates would beneficially own, in the aggregate, Voting Securities representing an amount (the "Threshold Amount") which exceeds the greater of 20% of Issuer's outstanding Voting Securities or such percentage of the Issuer's outstanding Voting Securities which the sum of the Shares issued in connection with the Merger Agreement and the Shares issuable upon the conversion of the Notes issued in connection with the Purchase Agreement (taking into account any Voting Securities into which such Notes (or any Preferred Stock for which such Notes are exchanged) may from time to time be convertible as a result of application of the anti-dilution provisions applicable to the Notes or the Preferred Stock) would constitute on a fully diluted basis on the date of the later of the closings of the transactions contemplated by the Merger Agreement and the Purchase Agreement; provided, however, that notwithstanding anything to the contrary contained herein, the foregoing restriction shall not be deemed to be violated or applicable if Stockholder is not otherwise in breach of this Agreement and (i) the percentage of the outstanding Voting Securities beneficially owned, in the aggregate, by Stockholder and Affiliates is increased as a result of a recapitalization of Issuer, a repurchase of securities by Issuer or any other action taken solely by Issuer, (ii) a benefit plan maintained for employees of Stockholder and Affiliates acquires up to 1% (in the aggregate) of the outstanding Common Stock solely for purposes of investment, or (iii) Issuer breaches its obligation under Section 4(b) hereof; and provided, further, that so long as Stockholder is not otherwise in breach of this Agreement, (i) if a third party (which term for purposes of this Agreement shall include any group as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) makes a tender or exchange offer which, if consummated, would result in such third party owning at least a majority of the Voting Securities and Issuer's Board of Directors does not oppose such tender or exchange offer at the time at which it is required by applicable securities laws to make a recommendation regarding such tender or exchange offer to Issuer's stockholders, then Stockholder may make and consummate a tender or exchange offer for a number of Voting Securities equal to or greater than the number of Voting Securities which such third party seeks to purchase pursuant to such tender or exchange offer, (ii) if a third party acquires beneficial ownership of at least 30% of the outstanding Voting Securities, and Stockholder is prohibited by the terms of this Agreement from acquiring more than 30% of the outstanding Voting Securities, then Stockholder may purchase up to the same number of Voting Securities as such third party or may make and consummate a tender or exchange offer for all outstanding Voting Securities, and (iii) if Issuer's Board of Directors approves a definitive written agreement with respect to a business combination or other extraordinary transaction involving Issuer as a result of which more than 50% of the assets of Issuer would be transferred or a Change of Control (as defined below) would occur, then Stockholder may make and consummate a tender or exchange offer for all outstanding Voting Securities, and if Stockholder is permitted to make and consummate a tender or exchange offer pursuant hereto, none of the restrictions contained in this Section 3 (with the exception of Section 3(f) and the application of Section 3(g) to Section 3(f)) shall apply to Stockholder's activities with regard to any stockholder vote or proposal in connection therewith or in connection with any alternative transaction or action proposed in response thereto; "Change of Control" shall mean any transaction as a result of which (i) the owners of a majority of the Voting Securities of Issuer immediately prior to consummation of the transaction will not continue to own upon completion of the transaction (A) a majority of the Voting Securities of Issuer or (B) a majority of the Voting Securities of any other person into or for the securities of which the Voting Securities of Issuer will be converted or exchanged as a result of the transaction or (ii) as a result of which any third party is entitled to elect a majority of the members of the Board of Directors of Issuer; (b) solicit, or encourage any other person to solicit, "proxies" or become a "participant" or otherwise engage in any "solicitation" (as such terms are defined or used in Regulation 14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) in opposition to a recommendation of a majority of the directors of Issuer with respect to any matter; seek to advise or influence any person (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the voting of any securities of the Issuer; or execute any written consent in lieu of a meeting of holders of securities of Issuer or any class thereof; provided, however, that if Stockholder is entitled to elect directors of Issuer pursuant to Section 3.3 of the Certificate of Designation of the Preferred Stock (the "Certificate of Designation"), nothing in this Section 3(b) shall be construed to prohibit Stockholder from soliciting proxies for the election of such directors from the holders of Defaulted Parity Stock (as defined in the Certificate of Designation); (c) initiate, propose or otherwise solicit stockholders for the approval of one or more stockholder proposals with respect to Issuer, as described in Rule 14a-8 under the Exchange Act; (d) acquire control of Issuer or directly or indirectly participate in or encourage the formation of any "group" (within the meaning of Section 13(d)(3) of the Exchange Act) owning or seeking to acquire beneficial ownership of securities of the Issuer or affect control of Issuer; (e) otherwise act, directly or indirectly, alone or in concert with others, to seek to control or influence in any manner the management, business, operations, board of directors, policies or affairs of Issuer, or propose or seek to effect any form of business combination transaction with Issuer or any affiliate thereof or any restructuring, recapitalization or other similar transaction with respect to Issuer; (f) deposit any of the Shares into a voting trust, or subject any of the Shares to any agreement or arrangement with respect to the voting of the Shares or any agreement having similar effect to any of the foregoing in this Section 3(f); or (g) (i) encourage any person, firm, corporation, group or other entity to engage in any of the actions covered by clauses (a) through (e) of this Section 3 or make any public arrangement (or make other communication with or to Issuer or otherwise which, in the opinion of counsel to Issuer, would require public announcement) with respect to any matter set forth in clause (a) through (f) of this Section 3; provided, however, that actions taken by any representative of Stockholder on the Board of Directors of Issuer, acting solely in his or her capacity as such a director, shall not violate this Section 3. Stockholder further covenants to cause the termination or resignation of any director being removed from the Board of Directors of Issuer in accordance with Section 4(b) hereof. 4. Covenants of Issuer. Issuer covenants with Stockholder that: (a) prior to (i) the closing of the transactions contemplated by the Purchase Agreement and the Merger Agreement, whichever occurs earlier (the "First Closing"), or, if later, (ii) any other event or transaction which would result in Stockholder beneficially owning 15% or more of the outstanding Voting Securities, the Board of Directors of Issuer shall approve any and all agreements, events or transactions for purposes of Section 203 of the Delaware General Corporation Law ("Section 203") in order that the restrictions contained in Section 203 shall not be applicable to Stockholder and Affiliates; (b) Immediately after the First Closing, and so long as Stockholder shall not be in breach of any of its obligations hereunder, the Board of Directors of Issuer shall take all necessary actions to increase the size of such Board by one and to fill the vacancy created thereby with an individual designated in writing by Stockholder and reasonably acceptable to Issuer, and, if at any time Issuer's Board of Directors shall consist of 10 or more members and the transactions contemplated by both the Purchase Agreement and the Merger Agreement shall have been consummated, then Issuer's Board of Directors shall take all necessary actions to increase further the size of the Board by one and to fill the additional vacancy created thereby with a second individual designated in writing by Stockholder and reasonably acceptable to Issuer, and Issuer shall thereafter take such action as necessary or appropriate to include such individuals among Issuer's nominees for director, shall recommend to its stockholders a vote in favor of such individuals at any annual or special meeting of stockholders called to vote upon the election or removal of any directors, and shall cause all shares of capital stock of Issuer over which Issuer exercises direct or indirect voting power to be voted in favor of the election of the individuals designated in writing hereunder by Stockholder; provided, however, that at such time as Stockholder has the right to designate two directors and Stockholder beneficially owns fewer than 5,000,000 but at least the lesser of (i) 2,800,000 shares of Common Stock (including, for purposes of this calculation, the number of shares of Common Stock into which the Notes and Preferred Stock beneficially owned by Stockholder are then convertible) and (ii) 75% of the sum of any Shares issued in connection with the Merger Agreement and the Shares issuable upon the conversion of any Notes issued in connection with the Purchase Agreement (taking into account any Voting Securities into which such Notes (or any Preferred Stock for which such Notes are exchanged) may from time to time be convertible as a result of the application of the anti-dilution provisions applicable to the Notes or the Preferred Stock) (the lesser of the foregoing clauses (i) and (ii) being referred to herein as the "Lesser Amount"), then one of Stockholder's nominees shall be re moved from Issuer's Board of Directors and Issuer's obligations under this Section 4(b) shall only apply in respect of the election of one nominee of Stockholder, and at such time as Stockholder owns fewer shares of Common Stock than the Lesser Amount, Stockholder's remaining or, as the case may be, sole nominee shall be removed from Issuer's Board of Directors and Issuer shall be relieved of its obligations under this Section 4(b); and (c) Issuer will not, for so long as this Agreement is effective, enter into or adopt any plans, agreements, arrangements or understandings which have the effect of materially impeding, preventing or prohibiting Stockholder from beneficially owning, in the aggregate, the Threshold Amount. 5. Specific Performance. Issuer and Stockholder each acknowledge and agree that in the event of any breach of this Agreement, the non-breaching party would be irreparably harmed and could not be made whole by monetary damages. It is accordingly agreed that Issuer and Stockholder, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to compel specific performance of this Agreement in any action instituted in the federal courts located in the State of Delaware, or, in the event said courts would not have jurisdiction for such action, in any court of the United States or any state having subject matter jurisdiction. Issuer and Stockholder each consent to personal jurisdiction in any such action brought in the federal courts located in the State of Delaware and to service of process upon it in the manner set forth in Section 7(g) hereof and addressed to the General Counsel of the recipient at the address set forth in Section 7(g). 6. Expenses. All fees and expenses incurred by Stockholder will be borne by Stockholder, and all fees and expenses incurred by Issuer in connection with this Agreement will be borne by Issuer. 7. Miscellaneous. (a) This Agreement, together with the Purchase Agreement, the Merger Agreement and the other agreements contemplated hereby and thereby, constitute the entire agreement, and supersede all prior agreements and understandings, whether oral or written, among the parties hereto, with respect to the subject matter hereof. This Agreement may not be amended orally, but only by an instrument in writing signed by each of the parties to this Agreement. (b) This Agreement shall inure to the benefit of and be binding upon the parties hereto and their heirs, legal representatives, successors and assigns. (c) Section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. (d) All representations, warranties and covenants shall survive the execution and delivery hereof. (e) This Agreement may be executed in any number of counterparts, each of which shall, when executed, be deemed to be an original and all of which shall be deemed to be one and the same instrument. (f) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without reference to the conflict of laws principles thereof. (g) All notices and other communications under this Agreement shall be in writing and delivery thereof shall be deemed to have been made either (i) if mailed, when received, or (ii) when transmitted by hand delivery, telegram, telex, FedEx or other overnight courier service, telecopier or facsimile transmission (in either case, if confirmed), to the party entitled to receive the same at the address or facsimile number set forth in the Merger Agreement (as the same may be amended or modified in accordance with the terms thereof). (h) Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. (i) This Agreement shall terminate and be of no further effect if the Purchase Agreement and the Merger Agreement shall have each been terminated in accordance with their respective terms. IN WITNESS WHEREOF, and intending to be legally bound hereby, each of Stockholder and Issuer has executed or caused this Agreement to be executed as of the date first above written. TRIBUNE COMPANY By /s/ Donald C. Grenesko Name: Donald Greneskso Title: Sr. Vice President/ C.F.O. SOFTKEY INTERNATIONAL INC. By /s/ R. Scott Murray Name: R. Scott Murray Title: Chief Financial Officer EX-99.5 4 PLACEMENT AGENCY AGREEMENT Exhibit 99.5 PLACEMENT AGENCY AGREEMENT PLACEMENT AGENCY AGREEMENT dated as of November 6, 1987 between TRIBUNE COMPANY, a Delaware corporation (the "Company"), and MERRILL LYNCH MONEY MARKETS INC., a Delaware corporation ("Merrill Lynch"). W I T N E S S E T H: WHEREAS, the Company has requested Merrill Lynch to act as the agent of the Company for the private placement to accredited investors of the Company's unsecured notes with maturities of up to 270 days from date of issue substantially in the form of Exhibit A hereto (the "Notes"). WHEREAS, it is contemplated that the maximum aggregate face amount of the Notes to be outstanding at any one time will be $450,000,000. WHEREAS, Merrill Lynch has indicated its willingness to act as the agent of the Company in the private placement of the Notes, subject to the satisfactory completion of such investigation and inquiry into the Company's business as Merrill Lynch deems appropriate under the circumstances. NOW THEREFORE, in consideration of the premises, the parties agree as follows: 1. Appointment as Placement Agent. (a) The Company appoints Merrill Lynch its placement agent for the Notes and acknowledges that Merrill Lynch shall have the right to assist the Company in the placement of the Notes during the term of this Agreement. The Company agrees that during the period Merrill Lynch is acting as the Company's placement agent hereunder, the Company shall not directly contact or solicit potential investors to purchase the Notes. (b) In soliciting purchases of the Notes in accordance with clause (a) of this Section 1, Merrill Lynch shall act solely as agent for the Company and not as principal. Merrill Lynch shall make reasonable efforts to assist the Company in obtaining performance by each purchaser whose offer to purchase Notes has been solicited by Merrill Lynch and accepted by the Company. Merrill Lynch shall not have any liability to the Company in the event any such purchase is not consummated for any reason. Merrill Lynch shall not have any obligation to purchase, as principal, Notes from the Company under any circumstances. (c) The Company and Merrill Lynch agree that any Notes the placement of which Merrill Lynch arranges shall be placed by Merrill Lynch in reliance on the representations, warranties, covenants and agreements of the Company contained herein and on the terms and conditions and in the manner provided herein. -1- (d) Upon receipt of instructions from the Company, Merrill Lynch will use its best efforts to solicit purchases of such principal amount of the Notes as the Company and Merrill Lynch shall agree upon from time to time during the term of this Agreement. Unless otherwise instructed by the Company, Merrill Lynch will communicate to the Company, orally or in writing, each offer to purchase Notes, other than those rejected by Merrill Lynch. Merrill Lynch shall have the right, in its discretion reasonably exercised, to reject any proposed purchase of Notes, in whole or in part. (e) The Company may instruct Merrill Lynch to suspend solicitation of purchases of Notes at any time. Upon receipt of such instructions, Merrill Lynch will forthwith suspend solicitations until such time as the Company has advised it that solicitation of purchases may be resumed. 2. Offers and Sales of the Notes. The offer and sale of the Notes by the Company is to be effected pursuant to the exemption from the registration requirements of the Securities Act of 1933, as amended (the "Act"), provided by Section 4(2) thereof, which exempts transactions by an issuer not involving any public offering. Offers and sales of the Notes by the Company will be made in accordance with the general provisions of Rule 506 under the Act, provided that the Company need not file Form D as required by Rule 503 under the Act. Merrill Lynch and the Company hereby establish the following procedures in connection with the offer and sale or resale of the Notes: (a) Offers and sales of the Notes will be made only to institutional purchasers which qualify as accredited investors (as defined in Rule 501(a) under the Act) (each such institutional purchaser being hereinafter called an "accredited investor"). No Notes will be offered to natural persons. (b) The Notes will be offered only by approaching prospective purchasers on an individual basis. The Notes will not be offered or sold by any means of general solicitation or general advertising. (c) In the case of a non-bank purchaser acting as a fiduciary for one or more third parties, each such third party will, in the judgment of Merrill Lynch, after due inquiry, be an accredited investor. (d) No sale of the Notes to any one purchaser will be for less than $200,000 face amount and no Note will be issued in a smaller face amount. If the purchaser is a non-bank fiduciary acting on behalf of others, each person for whom it is acting must purchase at least $200,000 face amount of the Notes. (e) Each Note shall contain the legend set forth on the form of such Note attached as Exhibit A hereto stating in effect that such Note has not been registered under the Act and -2- that any resale or other transfer of such Note or any interest therein shall be made only to or through Merrill Lynch to an institutional investor approved as an accredited investor by Merrill Lynch. The purpose of this requirement is to ensure that Notes are resold or otherwise transferred only to accredited investors and not in a manner that might call into question the non-public offering character of the offer and sale of the Notes. Merrill Lynch agrees that (i) it will not effect or approve any such resale except to itself or to an accredited investor and (ii) each such resale shall be made in accordance with the provisions of this Section 2. (f) Each purchaser of the Notes will have made available to it a Private Placement Memorandum together with any supplements to such Private Placement Memorandum which may have been prepared which describes (A) the Notes, (B) the proposed use of proceeds of sale of the Notes, (C) the business of the Company and any material change therein or in the financial condition of the Company not disclosed in the documents described below, (D) such summary financial information concerning the Company as the Company and Merrill Lynch consider appropriate and (E) the restrictions on resale. The Private Placement Memorandum will contain a statement expressly offering an opportunity for each prospective purchaser to ask questions of, and receive answers from, the Company and Merrill Lynch concerning the offering of the Notes and to obtain additional relevant information which the Company or Merrill Lynch possesses or can acquire without unreasonable effort or expense. The Private Placement Memorandum will state that all periodic reports and reports on Form 8-K filed by the Company pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by reference therein. All documents incorporated by reference into the Private Placement Memorandum will be provided without charge to each prospective purchaser of Notes who requests them. The Private Placement Memorandum and such incorporated documents are herein referred to as the "Disclosure Documents." (g) The Company agrees to cooperate with Merrill Lynch in the preparation of the Private Placement Memorandum and in amending it as from time to time may be necessary. Accordingly, the Company agrees to furnish Merrill Lynch with such number of copies of the most recent Annual Reports of the Company on Form 10-K filed with the Securities and Exchange Commission (the "SEC"), each definitive proxy statement, each report on Form 10-Q and each report on Form 8-K deemed by the Company to be material to investors in the Notes filed by the Company with the SEC since the filing of the most recent Form 10- K, as Merrill Lynch may require in connection with the preparation of the Private Placement Memorandum. As long as any of the Notes are outstanding, the Company will provide Merrill Lynch with copies of all interim, quarterly and annual reports, proxy statements and registration statements which the Company files with the SEC, as well as such other material information in such quantities as Merrill Lynch may reasonably request. -3- (h) The Company will immediately inform Merrill Lynch in writing of any material adverse changes in or affecting the business, earnings, affairs or business prospects of the Company which (i) make or might make any statement in the Disclosure Documents false or misleading in any material respect or (ii) are not disclosed in such documents. In such event, Merrill Lynch shall not thereafter attempt to offer or place any of the Notes until the Company shall have prepared and furnished to Merrill Lynch, in such numbers as Merrill Lynch may require, supplements to, or amendments of, the Private Placement Memorandum reflecting any such material changes. Prior to any offer or sale of Notes, Merrill Lynch shall, with the cooperation of the Company, have the right to make such reasonable due diligence investigation of the business of the Company as is usual in the course of continuous offerings of debt instruments. Merrill Lynch shall not be liable or responsible to the Company for any losses, damages or liabilities suffered or incurred by the Company, including any losses, damages or liabilities under the Act, arising from or relating to any resale or transfer of a Note other than to or through Merrill Lynch or approved by Merrill Lynch as contemplated by paragraph (e) of this Section 2. 3. Representations and Warranties. The Company represents and warrants to Merrill Lynch as of the date hereof and as of each date contemplated by Section 4 hereof that: (a) The Disclosure Documents do not and will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading. (b) The financial statements included in the Disclosure Documents, if any, are and will be in accordance with the related books and records of the Company, and are and will be complete and correct and fairly present in accordance with generally accepted accounting principles the financial position of the Company and its consolidated subsidiaries as at the dates set forth therein and the results of their operations for the periods set forth therein. Except as set forth in the Disclosure Documents, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a basis which is consistent in all material respects during the periods involved. The supporting schedules, if any, included in the financial statements present fairly the information required to be stated therein as of the dates or for the periods indicated. (c) Since the respective dates as of which information is given in the Disclosure Documents, except as may otherwise be stated or contemplated therein or in any amendment or supplement thereto, there has not been any material adverse -4- change in the condition, financial or otherwise, of the Company and its subsidiaries taken as a whole, or in the earnings, affairs or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business. (d) The Company (i) has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and (ii) has the requisite corporate power and authority to execute and deliver the Notes and perform its obligations thereunder and to own its properties and conduct its business as described in the Disclosure Documents. (e) The Company is not in violation of its charter or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement or lease to which the Company is a party or by which it may be bound, and the execution and delivery of this Agreement and the Notes and the incurrence of the obligations and consummation of the transactions herein contemplated will not conflict with, or constitute a breach of or default under, the charter or by-laws of the Company or any material contract, indenture, mortgage, loan agreement or lease, to which the Company is a party or by which it may be bound, or any law, administrative regulation or court decree. (f) This Agreement has been duly authorized, executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws relating to or affecting generally the enforcement of creditors' rights or by general equitable principles. (g) The Notes have been duly authorized for issuance, offer and sale as contemplated by this Agreement and, when issued and delivered against payment of the purchase price therefor, will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws relating to or affecting generally the enforcement of creditors' rights or by general equitable principles. (h) Assuming compliance with Section 5(b) hereof, no consent, approval, authorization, order, registration or qualification of or with any court or any regulatory authority or other governmental agency or body (including the SEC) is required for the issuance, offer or sale of the Notes by the Company in accordance with the terms of this Agreement or for the consummation of the transactions contemplated by this Agreement or the Notes. -5- (i) There are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject, other than as set forth in the Disclosure Documents and other than legal or governmental proceedings which in each case will not have a material adverse effect on the business, financial condition, shareholders' equity or results of operations of the Company and its subsidiaries taken as a whole; and to the best of its knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (j) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended. (k) The offer, issuance, sale and delivery of the Notes in accordance with the terms of this Agreement will constitute exempted transactions under the Act pursuant to Section 4(2) thereof, and registration of the Notes under the Act will not be required in connection with any such offer, issuance, sale or delivery of the Notes. (l) The Notes, when issued, will rank pari passu with all other unsecured and unsubordinated indebtedness of the Company. 4. Additional Representation and Warranty. Each -------------------------------------- acceptance by the Company of an offer for the purchase of Notes shall be deemed an affirmation by the Company that its representations and warranties set forth in Section 3 hereof are true and correct at the time of such acceptance, and an undertaking that such representations and warranties will be true and correct at the time of delivery to the purchaser or its agent of the Note or Notes relating to such acceptance, as though made at and as of such time (it being understood that insofar as such representations and warranties relate to the Private Placement Memorandum, such representations and warranties shall relate to the Private Placement Memorandum delivered to prospective purchasers of Notes at the time of such acceptance and at the time of such delivery of the Note or Notes relating to such acceptance, respectively). 5. Covenants. (a) The Company agrees that no future offer and sale of debt securities of the Company of any class will be made if, as a result of the doctrine of "integration" referred to in Rule 502 of Regulation D under the Act, Securities Act Release No. 6389 (March 8, 1982), Securities Act Releases Nos. 4434 (December 6, 1961), 4552 (November 6, 1962) and 4708 (July 9, 1964), and various "no-action" letters made available by the SEC, such offer and sale would call into question the entitlement of the Notes to the exemption from the registration requirements of the Act provided by Section 4(2) thereof. -6- (b) The Company will endeavor, in cooperation with Merrill Lynch, to qualify the Notes for offer and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Company and Merrill Lynch shall mutually agree, and will maintain such qualifications in effect for as long as may be required for the distribution of the Notes. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Notes have been qualified as above provided. If requested by the Company, Merrill Lynch will deliver to the Company prior to the first offer of Notes a copy of a Blue Sky Law Survey prepared by Seward & Kissel, counsel to Merrill Lynch in this transaction, with respect to the offer and sale of the Notes. (c) The Company will use the net proceeds of sale of the Notes for general corporate purposes including the possible repurchase of outstanding capital stock of the Company. Until the Company notifies Merrill Lynch to the contrary, Merrill Lynch will not purchase and hold the notes as principal (other than on an "intra-day" basis). The Company will not use the proceeds of Notes purchased and held by Merrill Lynch, as principal, for the purchase or carrying of securities. (d) Pursuant to a certain issuing and paying agency agreement dated as of November 22, 1985 between the Company and Morgan Guaranty Trust Company of New York (the "Issuing and Paying Agent"), the Company will maintain a bank account at the issuing and Paying Agent into which all of the proceeds of the sale of the Notes will be deposited by the Issuing and Paying Agent. Only (i) the proceeds of sale of the Notes and (ii) such funds as, together with the proceeds of the Notes, shall be necessary to make all payments in respect of the Notes, shall be deposited in such account, which shall be maintained at the Issuing and Paying Agent separate and apart from any other account into which the Issuing and Paying Agent may be authorized by the Company to deposit proceeds of sale of other commercial paper notes or other notes which the Company may offer, either publicly or privately, in the United States or to United States residents. Appropriate corporate controls will be instituted and maintained to assure that the proceeds from the sale of the Notes will be used for purposes which will not impair the availability of the exemption under Section 4(2) of the Act for the offer, issuance, sale and delivery of the Notes. 6. Conditions Precedent to Placement of the Notes. (a) Prior to the initial placement of Notes hereunder, the Company shall cause to be delivered to Merrill Lynch (i) the written opinion of counsel to the Company in substantially the form of Exhibit B hereto, (ii) a certificate of the Secretary or other appropriate officer of the Company certifying true copies of the resolutions of the Company approving this Agreement, the Notes and the transactions contemplated hereby and certifying the incumbency, authority and true signatures of the officers of the Company authorized to sign this Agreement and the Notes, (iii) a -7- certificate of the Treasurer, Chief Financial Officer or other appropriate officer of the Company certifying that the representations and warranties set forth in Section 3 hereof are true and correct, and (iv) an original executed copy, photocopy or conformed copy of the Issuing and Paying Agency Agreement, which shall be in form and substance acceptable to Merrill Lynch. Merrill Lynch may deliver a copy of the opinion referred to in clause (i) above to any purchaser of a Note who requests such copy. (b) Prior to the initial placement of any Notes hereunder, such Notes shall have been rated at least "A-2" by Standard & Poor's Corporation and at least "P-2" by Moody's Investors Service, Inc. and upon each subsequent placement of Notes hereunder such ratings shall be in full force and effect. Such ratings were obtained by the Company with the understanding that the agencies providing such ratings would continue to monitor the credit of the Company and make future adjustments in such ratings to the extent warranted. 7. Delivery of and Payment for the Notes. Delivery of the Notes shall be made by the Company through the Issuing and Paying Agent to Merrill Lynch for the account of any purchaser only against payment therefor in immediately available funds. In the event that a customer shall either fail to accept delivery of or make payment for a Note on the date fixed for settlement, Merrill Lynch shall promptly notify the Company, and, if Merrill Lynch has theretofore paid the Company for such Note, the Company will promptly return such funds to Merrill Lynch against its return of the Note to the Company. If such failure occurred for any reason other than the failure by Merrill Lynch in the performance of its obligations hereunder, the Company will reimburse Merrill Lynch on an equitable basis for Merrill Lynch's loss of the use of the funds for the period such funds were credited to the Company's account. If such failure occurred solely as a result of the failure by Merrill Lynch in the performance of its obligations hereunder, Merrill Lynch will reimburse the Company on an equitable basis for the Company's loss of the use of the funds with respect to the date fixed for settlement. 8. Indemnification and Contribution. (a) The Company -------------------------------- agrees to indemnify and hold harmless Merrill Lynch and each person who controls Merrill Lynch within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which Merrill Lynch or they may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Disclosure Documents, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be -8- stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, for any legal or other expenses reasonable incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of Merrill Lynch specifically for use in connection with the preparation thereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Merrill Lynch agrees to indemnify and hold harmless the Company and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to Merrill Lynch, but only with reference to written information relating to the offering by Merrill Lynch of the Notes furnished to the Company by or on behalf of Merrill Lynch specifically for use in the preparation of the Disclosure Documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which Merrill Lynch may otherwise have. The Company acknowledges that the statements set forth (i) under the heading "Plan of Distribution" and (ii) under the heading "Private Placement" (except for the first paragraph, the second sentence of the third paragraph, the second sentence of the fifth paragraph and the sixth paragraph), in the Private Placement Memorandum constitute the only information furnished in writing by or on behalf of Merrill Lynch for inclusion in the Disclosure Documents referred to in the foregoing indemnity, and Merrill Lynch, as agent, confirms that such statements are correct. (c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 8. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified -9- parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by Merrill Lynch in the case of paragraph (a) of this Section 8, representing the indemnified parties under such paragraph (a) who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). (d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) of this Section 8 is due in accordance with its terms but is for any reason held by a court to be unavailable from the Company on grounds of policy or otherwise, the Company and Merrill Lynch shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) to which the Company and Merrill Lynch may be subject in such proportion so that Merrill Lynch is responsible for that portion represented by the percentage that the aggregate commissions received by Merrill Lynch pursuant to Section 9(a) in connection with the Notes from which such losses, claims, damages and liabilities arise, bears to the aggregate principal amount of the Notes sold and the Company is responsible for the balance; provided, however, that (y) in no case shall Merrill Lynch be responsible for any amount in excess of the commissions received by Merrill Lynch in connection with the Notes from which such losses, claims, damages and liabilities arise and (z) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls Merrill Lynch within the meaning of the Act or the Exchange Act shall have the same rights to contribution as Merrill Lynch and each person who controls the -10- Company within the meaning of either the Act or the Exchange Act shall have the same rights to contribution as the Company, subject in each case to clause (y) of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d). The obligations under this Section 8 shall survive any termination of this Agreement, in whole or in part. 9. Fees and Expenses. (a) As compensation for the services of Merrill Lynch hereunder, the Company shall pay it, on a discount basis, a commission for the sale of each Note at such rate as shall be agreed upon from time to time by the Company and Merrill Lynch. (b) The Company will pay all of its costs and expenses incident to the placement and issuance of the Notes, and will reimburse Merrill Lynch for one-half of the fees and disbursements of Seward & Kissel, counsel to Merrill Lynch in this transaction, relating to the preparation of a legal opinion regarding the availability of an exemption for the offer, issuance and sale of the Notes under Section 4(2) of the Act, provided that the Company shall not be liable for more than $2,000 in respect of the fee portion of such reimbursement. 10. Notices. Unless otherwise indicated, all notices required under the terms and provisions hereof shall be in writing, either delivered by hand, by mail (postage prepaid), or by telex, telecopier or telegram, and any such notice shall be effective when received at the address specified below. If to the Company: Tribune Company 435 North Michigan Avenue Chicago, Illinois 60611 Attention: Mr. David J. Granat Telephone No. (312) 222-3897 Facsimile No. (312) 222-4206 If to Merrill Lynch: Merrill Lynch Money Markets Inc. 5500 Sears Tower Chicago, Illinois 60602 Attention: Mr. Thomas R. Williams Telephone No. (312) 993-2482 -11- Facsimile No. (312) 993-1120 or at such other address as such party may designate from time to time by notice duly given in accordance with the terms of this Section 10 to the other party hereto. 11. Governing Law. This Agreement shall be governed by and construed in accordance with, the laws of the State of New York. 12. Amendment and Termination; Successors; Counterparts. (a) The terms of this Agreement shall not be waived, altered, modified, amended or supplemented in any manner whatsoever except by written instrument signed by both parties hereto. Either party to this Agreement may terminate this Agreement upon at least 30 days' written notice to each other party hereto, provided that such termination shall not affect the obligations of the parties hereunder with respect to Notes outstanding at the time of such termination and actions or events occurring prior to such termination or with respect to Section 8 or Section 9 hereof. (b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. (c) This Agreement may be executed in several counterparts, each of which shall be deemed an original hereof. 13. Captions. The captions in this Agreement are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. 14. Effective Date. This Agreement shall be effective as of the date and year first above written. 15. Severability of Provisions. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written. TRIBUNE COMPANY By /s/ David J. Granat Authorized Signatory -12- MERRILL LYNCH MONEY MARKETS INC. By /s/ Thomas K. Wittin Jr. Authorized Signatory -13- EXHIBIT A THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND SALES THEREOF MAY BE MADE ONLY TO INSTITUTIONAL INVESTORS APPROVED AS ACCREDITED INVESTORS BY MERRILL LYNCH MONEY MARKETS INC. BY ITS ACCEPTANCE OF THIS NOTE, THE PURCHASER REPRESENTS THAT THIS NOTE IS BEING ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR SALE IN CONNECTION WITH, ANY PUBLIC DISTRIBUTION THEREOF AND THAT ANY RESALE OF THIS NOTE WILL BE MADE ONLY TO OR THROUGH MERRILL LYNCH MONEY MARKETS INC. TO AN INSTITUTIONAL INVESTOR APPROVED BY MERRILL LYNCH MONEY MARKETS INC. AS AN ACCREDITED INVESTOR. TRIBUNE COMPANY __________, 19__ No.____________ For value received, TRIBUNE COMPANY promises to pay to the order of BEARER on___________the sum of_________________ dollars at the office of Morgan Guaranty Trust Company of New York, [address]. TRIBUNE COMPANY By______________________ Authorized Signatory Countersigned for authentication only: MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Issuing and Paying Agent By______________________ Authorized Signatory This Note is not valid for any purpose unless countersigned by Morgan Guaranty Trust Company of New York, as Issuing and Paying Agent. EXHIBIT B [Letterhead of________________, counsel to the Company] _______________, 1987 Merrill Lynch Money Markets Inc. Merrill Lynch World Headquarters World Financial Center - North Tower 250 Vesey Street - 23rd Floor New York, New York 10281-1218 Dear Sirs: [We] [I] have acted as counsel to Tribune Company (the "Company") in connection with the proposed issuance of and offering to certain institutional investors of the Company's unsecured promissory notes (the "Notes") in the United States. [We] [I] have examined the Placement Agency Agreement dated as of November 6, 1987 (the "Placement Agency Agreement") between the Company and Merrill Lynch Money Markets Inc. ("Merrill Lynch"), the Issuing and Paying Agency Agreement dated as of November 22, 1985 (the "Issuing and Paying Agency Agreement") between the Company and Morgan Guaranty Trust Company of New York, the form of the Notes and such other documents, corporate records, certificates of public officials and other instruments and Company officer certificates as [we] [I] have deemed appropriate, and such questions of law as [we] [I] have considered relevant for purposes of this opinion. As to questions of fact material to such opinion, [we] [I] have, when relevant facts were not independently established by [us] [me], relied upon such certificates. In considering the above documents, [we] [I] have assumed the genuineness of all signatures thereon or on the originals thereof and the conformity to original documents of all copies or specimen documents. Unless otherwise defined herein, capitalized terms used herein have the meanings assigned to such terms in the Placement Agency Agreement. Based upon and subject to the foregoing, and based upon the facts and the law as of the date hereof, [we are] [I am] of the opinion that: 1. The Company (i) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and (ii) has the requisite corporate power and authority to execute and deliver the Placement Agency Agreement, the Issuing and Paying Agency Agreement and the Notes and perform its obligations thereunder and to own its properties and conduct its business as described in the Disclosure Documents. 2. The Company is not in violation of its articles of incorporation or, to the best of [our] [my] actual knowledge after due inquiry, in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement or lease known to [us] [me], to which the Company is a party or by which it may be bound. The execution and delivery of the Placement Agency Agreement and the Notes and the incurrence of the obligations and consummation of the transactions therein contemplated will not conflict with, or constitute a breach of or default under, the articles of incorporation or by-laws of the Company or, to the best of [our] [my] actual knowledge after due inquiry, any material contract, indenture, mortgage, loan agreement, or lease known to [us] [me], to which the Company is a party or by which it may be bound, of which [we] [I] have knowledge, or any law, administrative regulation, or, to the best of [our] [my] actual knowledge after due inquiry, any court decree. 3. The Placement Agency Agreement and the Issuing and Paying Agency Agreement have each been duly authorized, executed and delivered by the Company and each constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws relating to or affecting generally the enforcement of creditors' rights or by general equitable principles. 4. The Notes have been duly authorized for issuance, offer and sale as contemplated by the Placement Agency Agreement and when issued and delivered against payment of the purchase price therefor, will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws relating to or affecting generally the enforcement of creditors' rights or by general equitable principles. -1- 5. No consent, approval, authorization, order, registration or qualification of or with any court or any regulatory authority or other governmental agency or body (including the Securities and Exchange Commission) is required for the issuance, offer or sale of the Notes by the Company in accordance with the terms of the Placement Agency Agreement or for the consummation of the transactions contemplated by the Placement Agency Agreement or the Notes, provided that no opinion is expressed with respect to the availability of an exemption for the issuance, offer and sale of the Notes under Section 4(2) of the Securities Act of 1933. 6. There are no legal or governmental proceedings pending to which the Company is a party or of which any property of the Company is the subject, other than as set forth in the Disclosure Documents and other than legal or governmental proceedings which in each case will not have a material adverse effect on the business, financial condition, shareholders' equity or results of operations of the Company and its subsidiaries taken as a whole and to the best of my knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. 7. The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended. 8. The Notes rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Company. [We are members] [I am a member] of the Bar of the State of _______ only and do not purport to be [an] expert[s] in, or to express any opinion concerning the laws of any jurisdiction other than the State of _________and the federal laws of the United States. To the extent that the opinions herein involve the laws of the State of New York, we have assumed that the laws of the State of __________ are the same as those of the State of New York. Very truly yours, -2- EX-99.6 5 LETTER AGREEMENT Exhibit 99.6 -1- Tribune Company March 8, 1990 Tribune Company 435 North Michigan Avenue Chicago, Illinois 60611 Dear Sirs: This letter will confirm the agreement between Tribune Company (the "Company") and Goldman Sachs Money Markets Inc. ("GSMMI") with respect to the offer and sale by GSMMI of short-term promissory notes ("Notes") proposed to be issued from time to time by the Company in transactions not involving a public offering within the meaning of Section 4(2) of the Securities Act of 1933 (the "1933 Act") and Rule 506 thereunder. The Company understands that this letter does not constitute a commitment or obligation, expressed or implied, on the part of GSMMI to purchase any Notes from the Company, or to offer or sell any Notes. 1. The Notes will be issuable in denominations of not less than $250,000, will not be exchangeable for smaller denominations, will be payable to Bearer and will have maturities not exceeding 270 days from the date of issue. The Notes will be issued through Morgan Guaranty Trust Company in accordance with an issuing agency agreement between the Company and such bank dated November 22, 1985, a copy of which has been furnished to GSMMI. The Company will not amend such agreement without first informing GSMMI, and will promptly furnish to GSMMI a copy of any amendment to such agreement. 2. The Company hereby confirms to GSMMI that within the preceding six months neither the Company nor any person acting on behalf of the Company other than GSMMI or Merrill Lynch Money Markets Inc. ("Merrill") has offered or sold any Notes, or any substantially similar security of the Company, to, or solicited offers to buy any thereof from, any person other than GSMMI or Merrill. The Company also agrees that, as long as the Notes are being offered for sale by GSMMI as contemplated hereby and until at least six months after the offer of Notes hereunder has been terminated, neither the Company nor any person other than GSMMI or Merrill will offer the Notes or any substantially similar security of the Company for sale to, or solicit offers to, or solicit offers to buy any thereof from -2- Tribune Company being understood that this agreement is made with a view to bringing the offer and sale of the Notes within the exemption provided by Section 4(2) of the Securities Act of 1933 and Rule 506 thereunder. Further, both the Company and GSMMI agree that neither the Company nor any person acting on its behalf, nor GSMMI, will offer or sell, or solicit offers to buy, the Notes by any form of general solicitation or general advertising, within the meaning of Rule 502(c) under the 1933 Act or otherwise. The Company also confirms that it has entered into an agreement with Merrill which contains provisions relating to the manner of offering the Notes which are substantially similar to the provisions contained in this agreement. 3. (a) GSMMI proposes to maintain a list of prospective purchasers of the Notes to whom GSMMI may make offers and sales of Notes (the "Investor List"). It is contemplated that GSMMI will include on such Investor List (i) investors who may purchase Notes for their own accounts, (ii) investors who may purchase Notes as fiduciary or agent for the accounts of others and (iii) investors for whose accounts Notes may be purchased by others as fiduciary or agent. (b) An investor will be included on the Investor List only if believed by GSMMI to be a sophisticated institutional investor which (A) is an "accredited investor" as that term is defined in Rule 501(a) under the 1933 Act ("Accredited Investor") or, if the potential investor is a fiduciary or agent (other than a U.S. bank or savings and loan association) who will be purchasing Notes for one or more accounts, each such account will be an Accredited Investor, and (B) either (i) has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investing in Notes or (ii) is represented by a fiduciary or agent with sole investment discretion having such knowledge and experience. Not more than 300 investors may at any time be on the Investor List, but for this purpose any one investor and its fiduciary or agent, if any, may be counted as a single investor. Subject to the limitations set forth above, an investor may be added to the Investor List at any time. An investor may be deleted, however, only if no offer or sale of Notes to it has been made during the preceding six months. (c) GSMMI will offer and sell Notes only to investors which at the time are on the Investor List and are believed by GSMMI to meet the requirements set forth above for inclusion thereon. 4. (a) GSMMI will furnish to each purchaser of Notes (or to the fiduciary or agent acting for such purchaser), at or before the time of the sale of Notes to such purchaser, an Offering Memorandum in form and substance satisfactory to the Company and GSMMI. The Offering Memorandum at any time may consist of an annual Offering Memorandum and one or more supplemental Memoranda and will, among other things: -3- Tribune Company (i) Include summary financial and other information derived from the Company's latest Annual Report on Form 10-K and from any subsequent reports by it on Forms 10-Q or 8-K or materials mailed by it to its public stockholders; and incorporate by reference such Form 10-K report and any such subsequent 10-Q or 8-K reports; (ii) Include a statement to the effect that copies of reports filed by the Company with the Securities and Exchange Commission or mailed by it to its public stockholders, as well as such additional information, if any, as an investor in Notes may reasonably request, may be obtained through GSMMI; (iii) Set forth on the first page of the annual Offering Memorandum, with a reference thereto on the first page of each supplemental Memorandum, statements substantially as follows: PRIVATE PLACEMENT THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND SALES THEREOF MAY BE MADE ONLY TO INSTITUTIONAL INVESTORS APPROVED AS ACCREDITED INVESTORS BY MERRILL LYNCH MONEY MARKETS INC. OR GOLDMAN SACHS MONEY MARKETS INC. (EACH AN "AUTHORIZED ENTITY"). BY ITS ACCEPTANCE OF THIS NOTE THE PURCHASER REPRESENTS THAT THIS NOTE IS BEING ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR SALE IN CONNECTION WITH, ANY PUBLIC DISTRIBUTION THEREOF AND THAT ANY RESALE OF THIS NOTE WILL BE MADE ONLY TO OR THROUGH AN AUTHORIZED ENTITY TO AN INSTITUTIONAL INVESTOR APPROVED BY SUCH AUTHORIZED ENTITY AS AN ACCREDITED INVESTOR. Each purchaser of a Note will be deemed to have represented and agreed as follows: (1) the purchaser understands that the Notes are being issued only in transactions not involving any -4- Tribune Company public offering within the meaning of the Securities Act of 1933; (2) the purchaser is a sophisticated institutional investor who (A) is an "Accredited Investor" as that term is defined in Rule 501(a) under the Securities Act of 1933 (or is a fiduciary or agent (other than a U.S. bank or savings and loan association) which is purchasing the Note for the account of an Accredited Investor) and (B) has such knowledge and experience (or is a fiduciary or agent with sole investment discretion having such knowledge and experience) in financial and business matters that it (or such fiduciary or agent) is capable of evaluating the merits and risks of investing in such Note; (3) such Note is being purchased for the purchaser's own account (or for the account of one or more other institutional investors for which it is acting as duly authorized fiduciary or agent), for investment and not with a view to public distribution; (4) if in the future the purchaser (or any such other investor or any other fiduciary or agent representing such investor) decides to sell such Note prior to maturity, it will be sold only to Goldman Sachs Money Markets Inc. ("GSMMI") or Merrill Lynch Capital Markets Inc. ("Merrill") or through GSMMI or Merrill and only in a transaction exempt from registration under such Act; (5) the purchaser understands that, although GSMMI and Merrill may repurchase Notes, GSMMI and Merrill are not obligated to do so, and accordingly the purchaser (or any such other investor) should be prepared to hold such Note until maturity; and (6) the purchaser understands that such Note will bear a legend substantially as set forth in capital letters above. -5- Tribune Company (b) The Company agrees to furnish promptly to GSMMI three copies of all reports filed with the Securities and Exchange Commission, all documents filed with any stock exchange, all documents mailed to the Company's public shareholders, all press releases (issued by its corporate headquarters) and such other publicly distributed documents as GSMMI may reasonably request in order for GSMMI to prepare from time to time offering memoranda for distribution to purchasers of Notes and in order for GSMMI to evaluate at any time the ability of the Company to pay the Notes as they mature. The Company also agrees to furnish to GSMMI such additional information concerning the Company as GSMMI may reasonably request. (c) If at any time any event or other development occurs as a result of which the Offering Memorandum (including any documents incorporated by reference therein) includes an untrue statement of material fact or omits to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading, the Company will promptly notify GSMMI thereof, and GSMMI will not thereafter use such Offering Memorandum or offer or sell Notes until an appropriately revised Offering Memorandum is available. Each sale of a Note by the Company to GSMMI shall constitute a representation by the Company that the Offering Memorandum (including any documents incorporated by reference therein) at such time does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. 5. Each Note will bear a legend substantially as set forth in capital letters under "Private Placement" in paragraph 4(a) (iii) above. 6. The Company and GSMMI agree that not later than 15 days after the first sale of any Note as contemplated by this agreement, the Company will timely file with the Securities and Exchange Commission five copies of a notice on Form D (one of which will be manually signed by a person duly authorized by the Company), in accordance with the requirements of Rule 503 under the 1933 Act. The Company will also timely file such amendments to its notice on Form D as may be required by Rule 503. The Company will furnish to GSMMI evidence of each such filing (including a copy thereof). GSMMI will advise the Company promptly after the first sale of any Note hereunder has been confirmed by GSMMI to the purchaser, and GSMMI will also furnish to the Company any information which GSMMI may have that may be necessary to permit the Company to prepare such notice on Form D. 7. The Company agrees promptly from time to time to take such action as GSMMI may reasonably request to qualify the Notes for offering and sale under the securities laws of such jurisdictions as GSMMI may request and to comply with such laws so as to permit the continuance of sales and dealings therein in -6- Tribune Company such jurisdictions for as long as may be necessary to complete the transactions contemplated hereby, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction other than consent to service of process under such state securities laws. The Company also agrees to reimburse GSMMI for any reasonable fees or costs incurred in so qualifying the Notes. 8. This agreement will continue in effect until terminated as provided in this paragraph. This agreement may be terminated by the Company by giving written notice of its election to do so to GSMMI; or by GSMMI by giving written notice of its election to do so to the Company. This agreement shall terminate at the close of business on the first business day following the receipt of such notice by the party to whom such notice was given; provided, however, that the provisions of the first two sentences of paragraph 2, paragraph 4(c) (except that the provisions of the first sentence thereof shall survive only until no Notes sold to or through GSMMI remain outstanding), and 6 and 7 shall continue in effect subsequent to any such termination for a period of six months from the last maturity of a Note sold to or through GSMMI. 9. This agreement and each Note shall be governed by, and construed in accordance with, the laws of the State of New York. ---------------------------- -7- If the foregoing is in accordance with your understanding please confirm the same by signing and returning a copy hereof. Yours very truly, GOLDMAN SACHS MONEY MARKETS INC. By_/s/ Richard B. Davis Title: Confirmed as of the above date: TRIBUNE COMPANY By /s/ David J. Granat Title: Treasurer -----END PRIVACY-ENHANCED MESSAGE-----